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TMI Blog1988 (12) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court was dismissed on 3 August, 1988. A Review Petition filed thereafter by Kehar Singh was dismissed on 7 September, 1988 and later a writ petition was also dismissed by this Court. On 14 October, 1988 his son, Rajinder Singh, presented petition to the President of India for the grant of pardon to Kehar Singh under Art. 72 of the Constitution. In that petition reference was made to the evidence on the record of the criminal case and it was sought to be established that PG NO 1107 Kehar Singh was innocent, and that the verdict of the Courts that Kehar Singh was guilty was erroneous. It was urged that it was a case for the exercise of clemency. The petition included a prayer that Kehar Singh's representative may be allowed to see the President in person in order to explain the case concerning him. The petition was accompanied by extracts of the oral evidence recorded by the trial court. On 23 October. 1988 counsel for Kehar Singh wrote to the President requesting an opportunity to present the case before him and for the grant of a hearing in the matter. A letter dated 31 October, 1988 was received from the secretary to the President referring to the 'mercy petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the view that when exercising his powers under Art. 72 the President is precluded from entering into the merits of a case decided finally by this Court. It is clear from the record before us that the petition presented under Art. 72 was specifically based on the assertion that Kehar Singh was innocent of the crime for which he was convicted. That case put forward before the President is apparent from the contents of the petition and the copies of the oral evidence on the record or the criminal case. An attempt was made by the learned Attorney General to show that the President had not declined to consider the evidence led in the criminal case, but on a plain reading of the documents we are unable to agree with him. Clause (I) of Art 72 of the Constitution with which we are concerned, provides. The President shall have the power to grant pardon, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence:-- (a) in all cases where the punishment or sentence is by Court Martial: (b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r which is capable of exercise on a variety of grounds, for reasons of State as well as the desire to safeguard against judicial error. It is an act of grace issuing from the Sovereign. In the United States, however, after the founding of the Republic, a pardon by the President has been regarded not as a private act of grace but as a part of the constitutional scheme. In an opinion, remarkable for its erudition and clarity, Mr. Justice Holmes, speaking for the Court in W.I. Biddle v. Vuco Perovich, 71 L. Ed. 1161 enunciated this view and it has since been, affirmed in other decisions. The power to pardon is a part of the constitutional scheme, and we have no doubt, in our mind, that it should be so treated PG NO 1110 also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. It is not denied, and indeed it has been repeatedly affirmed in the course of argument by learned counsel, Shri Ram Jethmalani and Shri Shanti Bhushan, appearing for the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. 58. In actual practice, a sentence has been remitted in the exercise of this power on the discovery of a mistake committed by the High Court in disposing of a criminal appeal. See Nar Singh v. State of Uttar Pradesh, [ 1955] l S.C.R.238. We are of the view that it is open to the President in the exercise of the power vested in him by Art. 72 of the Constitution to scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court in regard to the guilt of, and sentence imposed on, the accused. In doing so, the President does not amend or modify or supersede the judicial record. The judicial record remains intact, and undisturbed. The president acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it. And this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him. In U.S. v. Benz, 75 L. Ed. 354 at 358 Sutherland, J. observed: The judicial power and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son suffers less imprisonment that that imposed by the court. The order of remission affects the execution of the sentence imposed by the court but does not affect the sentence as such, which remains what it was in spite of the order of remission. It is apparent that the power under Art. 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power. We are of opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this Court. In the course of argument, the further question raised was whether judicial review extends to an examination of the PG NO 1113 order passed by the President under Art. 72 of the Constitution. At the outset we think it should be clearly understood that we are confined to the question as to the area and scope of the President's power and not with the question whether it has been truly exercised on the merits. Indeed, we think that the order of the President cannot be subjected to judicial review on its merits except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that Art. 72 is an enabling provision and confers no right on any individual to invoke its protection. The power, he says, can be exercised for political considerations, which are not amenable to judicially manageable standards. In this connection, he has placed A.K. Roy, etc. v. Union of India and Anr., [1982] 2 SCR 272 before us. Reference has also been made to D K.M. Nanavati v. The State of Bombay, [ i961] 1 SCR 497 to show that when there is an apparent conflict between the power to pardon vested in the President or the Governor and the judicial power of the Courts and attempt must be made to harmonise the provisions conferring the two different powers. On the basis of Gopal Vinayak Godse v. The State of Maharashtra and Ors., [ 1961] 3 SCR 440 he urges that the power to grant remissions is exclusively within the province of the President. He points out that the power given to the President is untrammelled and as the power proceeds on the advice tendered by the Executive to the President, the advice likewise must be free from limitations, and that if the President gives no reasons for his order, the Court cannot ask for the reasons, all of which, the learned Attorney Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the case of the respondents any further. The point is a simple one, and needs no elaborate exposition. We have already pointed out that the Courts are the constitutional instrumentalities to go into the scope of Art. 72 and no attempt is being made to analyse the exercise of the power under Art. 72 on the merits. As regards Michael de Freitas, (supra), that was, case from the Court of Appeal of Trinidad and Tobago, and in disposing it of the Privy Council observed that the prerogative of mercy lay solely in the discretion of the Sovereign and it was not open to the condemned person or his legal representatives to ascertain the information desired by them from the Home Secretary dealing with the case. None of these observations deals with the point before us, and therefore they need not detain us. Upon the considerations to which we have adverted, it appears to us clear that the question as to the area of the President's power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review. The next question is whether the petitioner is entitled to an oral hearing from the President on his petition PG NO 1116 invoking t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not dispute Shri Shanti Bhushan's right to raise the question in this proceeding. Shri Shanti Bhushan has laid great emphasis on the dissenting judgment in Bachan Singh v. State of Punjab, [ 1983] 1 SCR 145. We have considered the matter, and we feel bound by the law laid down by this Court in that matter. The learned Attorney General has drawn our attention to the circumstance that PG NO 1117 only six sections, 120B, 121, 132, 302, 307 and 396, of the Indian Penal Code enable the imposition of the sentence of death, that besides the doctrine continues to hold the field that the benefit of reasonable doubt should be given to the accused, and that under the present criminal law the imposition of a death sentence is an exception (for which special reasons must be given) rather than the rule, that the statistics disclose that a mere 29 persons were hanged when 85,000 murders were committed during the period 1974 to 1978 and therefore, the learned Attorney General says, there is no case for reconsideration of the question. Besides, he points out, Articles 21 and 134 of the Constitution specifically contemplate the existence of a death penalty. In the circumstances, we think the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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